*1 128 260;
67, 85, Mulholland, 612; 55 App. 1. c. S. W. Bell Mo. 90 44 Amsden, 982; Cole, N. Y. 158 253, Guenther v. S. Coleman v. Mo. 59 W. S. 106.] judgment of lower It follows that the court should be reversed remanded, and is so Becker McGullen, and the cause ordered. JJ.,- concur. municipal of St. Louis, a Koontz, Respondent,
Louise corp., Defendants, and St. Louis Bus corporation, Co., a Appellant. municiрal 89 S. corporation, W. of St. Louis, (2d) 586. Appeals. Opinion Louis filed Jan. 1936. Court opinion rehearing overruled 1936. Feb. modified
Motion Ferris, Edgar G. Jr. for EcCy, WaymaM H. Forrest M. GhaÉ. appellant. *2 Flynn
Eagleton, Waeohter & Yost and Mason for respondent. *3 SUTTON, damages personal C. This is an in- action to recover juries by plaintiff resulting stepping upon sustained in a fall covering supply the defective lid or of a water box located in- at the Avenue, tersection Natural Union in the City Avenue and of St. Louis. alleges that there was, the north side said Natural just
Bridge Avenue, Avenue, sprinkling plug east of Union or water box, supply covering part the lid or which formed a the traveled portion street, of the sidewalk and covering and that thе lid or there- likely persons of was broken and defective stepping cause *4 walking injured, dangerous thereon to and it was be that and not reasonably alleges safe. It further that on or about June waiting plaintiff purpose was at the intersection for aforesaid of boarding passenger, one of defendant’s motоrbusses as a and that one of stopped defendant’s motorbusses at said intersection with the en- opposite trance thereof broken and defective water supply box, plaintiff attempting passenger and that to board the bus as a was injured, to all of which directly proximately caused fall and be and negligеnce defendants, resulted from the and carelessness of in the (1) city following respects, negligently That defendant to-wit: and caused, suffered, public carelessly permitted and sidewalk or street covering place or said to and remain in its lid be aforesaid and (2) city condition; negligently that carelessly defendant and defective ordinary repair covering said lid or care and to failed exercise (3) in a for travel; safe condition use and that make and restore carelessly city negligently and failed to exercise ordi- the defendant dangerous guard portions of fence said unsafe or nary care to or said prevеnt persons walking street so as to on said and sidewalk covering street; using broken and defective lid or said sidewalk and (4) negligently carelessly plaintiff that defendants and to warn failed dangerous of the aforesaid of and defective condition said sidewalk covering; lid (5) and and said street or that the defendant com- bus pany negligently stopped op- said with the motorbus entrance thereof cover, negligently and posite said broken defective lid and invited or passengers thereof; (6) persons to enter said as motorbus and that company negligently ordinary defendant motorbus failed exercise reasonably provide reasonably places means and for care to safe safe entering persons busses; proximate on that a direct said and and negligence defendants, aforesaid carelessness result of the and leg permanent injuries foot, her serious and left sustained right leg, system. ankle, back and and to her nervous spine, and contributоry general coupled plea denial with a The answer a negligence. reply general a denial.
The a in favor trial, jury, with a verdict resulted $5,000, favor of against City of for and in St. Louis the defendant Company, judgment ac- Bus and St. Louis defendant appeals. cordingly. of St. Louis Defendant on of the accident which caused thе Plaintiff testified thát Union sues, went the northeast corner of she injuries for which she Company bus St. Louis Bus Bridge catch a Avenues to Natural and quite a crowd Avenue; that there was on Natural go to west bus; a after this corner that waiting with her on people along regular place at its along stopped came the bus few minutes Union; starting to that, Bridge just Natural east of the north curb and with her left foot off the sidewalk bus, stepped board unpaved strip be- parkway in the or of a water onto the lid box stepped tipped curb, that the lid and fell and the the sidewalk tween gentleman sidewalk; that some on the she fell backwards her and with newsboy police officer,who called a taxi- called up; her that a helped each persons side home; there were her that cab, and took bus, door crowd, getting the entrance on’the her, quite a front lady box; water one adjacent to the directly opposite which obstructing vision of her, her right somewhat standing in front of this anything or broken about defective box; she did not see it; there was a box did not know that she stepped on lid before she lid, up her the broken gentleman helped who showed there; that the off; police driver and the that the cab was broken which one corner of *5 hip house; her was dislocated and that left her intо her carried officer injured. ankle left right hip and her years age, testified, eighteen newsboy, Brown, Eugene follows: plaintiff, as northeast corner Natural the papers I 1928 sold “In I -thr'ee and Union Avenues. sold them about months before the ac- I am talking with box she was sprinkling cident. familiar the that in I on her evidence. witnessed the accident that about ten lady standing after six This minutes or around the there. on waiting waiting corner for the bus. were several people There there get bus, get the went stepped on and she to on the bus. She on this stepped tilted, causing box. When she it lid her water on the foot go standing fell men down the box and she backwards. Some thеre A her on picked up police her and set the sidewalk. officer came over hospital lady the whether wanted to be taken to a or and asked she question I box after ac- home. the water lid the taken examined corner lid was broken off. It had been broken and cident. The of the corner, I to sell оn that newspapers since started in that condition ever accident, one-half or three months before the is, for about and that two people on it. stepped before when Several I had seen the lid tilt and them, with the it tilted people stepped had on lid times when other the the lid After accident broken they did not hurt themselves. but space water box was located a new one. The the replaced with the curb and one-half feet wide between ground about two and and Bridge Avenue, busses on side of Natural the north sidewalk the box, people customarily and used near the regularly stopped there ’’ get the bus. to walk on to on box located space where the the immediately plaintiff fol- attend ivas called to Dr. Luke Tiernon the hospital. his He reduced was taken to lowing injury. She her home. Dr. treated her at hip, and afterwards of her dislocation shortly before an examination Pernoud made F. G-. well as that of physicians, as of both thеse testimony The trial. in- permanent and serious plaintiff suffered that plaintiff, shows accident. juries as a result of city here,
Defendant ground contends as a for a reversal of the judgment below, petition that the not does facts sufficient state action, constitute a allege cause of that it does not or show that the negligence complained of injury. ’s caused contributed to is merit petition par- There in this contention. The sets out with ticularity negligence complained of, alleges and twice that her injuries directly negligence. and proximately resulted from such allege is true the particular does not manner in which plaintiff Avas injured, stepping and defective the broken of the water lid caused to fall lid box the tilted so that she was thus injured, and be it condition of but describes the broken and defective injured in at- lid, alleges to fall be was caused which, alleged, directly tempting bus, board all negligence of the defendants. proximately resulted on, relating аll the defective and negligence various acts relied dangerous lid, It is then box are then set out. condition of water
134 alleged that proximate negligence as a direct of and result such injured. any The in in was not attacked manner way objection below, by by court even ore not demurrer terms good against introduction of evidence. as unquestionably appeal. attack on city
Defendant further there was evidence to contends 7493, injury given required by show that notice her section as Ann., 7493, 5960, on that 1929, p. Revised Statutes Mo. St. sec. and ground assigns for error the refusal of its instruction the nature a demurrer evidence.
The statute reads as follows: against any city
“No action shall be maintаined of this State which may population now has or hereafter attain a of one hundred thousand injuries any inhabitants, any growing on account of out of defect in boulevard, street, thorough- any bridge, condition of sidewalk or writing have been city, fare in said until notice shall first mayor days city, ninety within of the occurrence of said where, place time damage stating the when claimed, which such circumstances injury received, the character and such damages will person injured claim therefor injury, and so that the city.” from such
The record shows that on September 11, 1928, plaintiff gave notice
injury
of her
city
to defendant
writing,
stating that her injury
June,
occurred “on the 28th
1928, at
six-thirty
about
P. M.”
Defendant
contends that
prove
failed to
injury
that her
oc-
28,
curred on June
1928, and
prove
thus failed to
gave
that she
notice
of the true date of the accident, and
proof
that such failure of
is fatal
recovery.
to a
statute, being
derogation
law,
of the common
is construed
liberally in
fаvor of the
strictly against
defendant,
but a
compliance
substantial
with its
required.
terms is
[Hackenyos
City
v.
of St.
(Mo.),
986;
Louis
203 S.
City
W.
Wolf v. Kansas
(Mo.),
246
236; Boyd
S. W.
v.
City,
Kansas
291
237
622,
1001;
Mo.
W.
S.
Randolph City
Springfield (Mo.),
257
449;W.
S.
Cole v. City of
(Mo.),
(2d)
Joseph
623;
50 W.
S.
Plater
City (Mo.),
v. Kansas
(2d) 800;
68 W.
Joseph,
S.
Beane
of St.
211
App. 200,
Mo.
840;
240 W.
(Mo.
S.
Adelman v. Altman
App.),
“Q. 9th, positive, I I June 1928? A. Or ain’t but know June was in June, 1928. *7 “Q. 29th, It A. Yes. was around June 9th Junе is that correct? or “Q. has four you A. I am not been No, Are sure of that? sure. years, it in but was June.” trial, prior
In her to the testified deposition, taken some time she as follows:
“Q. your you working you had accident on Where were at the time Company. 19, Boyd’s Clothing 1928? A. June “Q. Yes, A. you 19, June 1928? Were involved in an accident on sir. ‘‘Q. ? I day what it A. real- that, What thе month was ly can’t recall.” deposition,
Being if not testified asked the trial she had so “I answered, positive am not about date.” the There was no other testimony as the date of the accident.
It thus becomes that plaintiff obvious failed to show a substantial compliance with the respect statute with giving to the of notice of the injury time when her was received. It must observed, be however, testimony that her does affirmatively not show noncompliance with statute; merely it fails to affirmatively show compliance. plaintiff But contends that her failure show notice was compliance with the statute is not fatal recovery, to a for the rea- son give that failure to is notice not pleaded. We are thus confronted question awith impression of first in this State.' It definitely by ruled our Supreme Court, in the recent case of City Cole v. of St. Joseph, 50 (2d) S. W. 623, 626, c.1. wherein the court had under re- view substantially a statute the same as the statute with which we are concerned, here required is not plead giving of the as part notice of her cause of action. But the court declined to decide whether required defendant plead give failure to the notice. case,
In that quoted, the court with evident approval, from Beane Joseph, v. supra, as follows:.
“Where by the cause action is created the common law the con- part plaintiff’s dition is a action, not cause but is a matter of evidence. We think then that neither the notice nor the conditions pleaded petition.” need be in the quoted,
The court with approval, also evident dissenting opinion Hackenyos Louis, of St. supra, as follows:
“As to the common-law class of statute, code, actions there is no or pleading requires common law rule of performance which condition pleaded, to be and the obvious reason that omission the plaintiff’s fact that the condition forms part no of the case.” 136 performance
If by pleaded of the condition need not be part case, logically because it forms of the plaintiff’s it nonperformance follows that which becomes a matter of’defense must pleaded. performance put be How else could the matter of in issue ? be Though, case, giving required as said in of the the Beane notiсe as by evidence, probative the statute is matter a evidenti is not or ary fact, any say, going prove that is to it is fact not a ultimate alleged petition. fact issuable in the It is itself an ultimate or issuable A general puts only fact. or issuable denial issue the ultimate recog alleged in fact. petition. facts' It denies nо other The well general proved nized rule is that no can under a denial ex facts be go alleged such or issuable facts to show that the ultimate empt Co., 172 Ry. v. Missouri Pacific are untrue. [Bolton 89; 242 530; Enright (Mo.), S. W. Mo. 72 S. W. v. Schaden 85; v. Battenfeld Shannon, 133 Mo. 21 S. W. Stein Holdsworth v. James, (2d) 345; Greenway v. 34 (Mo.), & 39 S. W. Oil Grease Co. App. 695, 144 Mo. S. W. 326; Benoist, Mo. Hellmuth 257.] *8 plaintiff’s cаuse action in which the of The case here is not one to giving the not essential by the statute. The of notice created of perfectly valid cause She had a make her cause of action. out City [Randolph injured. as soon as she action at common law 449, 1. c. Springfield (Mo.), of 257 S. W. 451.] goes think remedy We the statutе to the rather right. than the Its give purpose evident is to the early defendant an opportunity in- to vestigate the facts injury. and circumstances the It was for enacted protection against imposition. the of the defendant It was not enacted to be working imposition used as a plaintiff. means of an If the the proрoses put defendant to matter of in issue, should, the notice plaintiff, pleading. fairness to the by appropriate do so Supreme Court,
Defendant reminds us of of the the statement though, Joseph, supra, that, Cole v. St. need not plead giving notice, proof of the “she must make of such fact recover,” saying order tо insists this is tantamount that that give pleaded. evident, however, It is failure to the notice need not be interpreted, for that court did not intend that the statement be so following clear lan- proceeded the court at once to make this guage: necessary
“It is not here to discuss or decide whether it is neces- sary рlead for defendant in its answer the failure plaintiff to give injury required of her by notice the statute. It would seem proper to be least defendant to do so. Even if we hold that required defendant is do this and has not so, done it would not plaintiff anything. avail Plaintiff asking is here for a new trial after verdict, an and if granted, adverse that be dеfendant would have a right respect. to amend its answer this Since holding we are that, by on the facts, plaintiff, conceded notice has been sufficient ’’ effectually and that bars recovery, a new trial would be useless. is language obvious this court mean to be did not ruling proof giving understood as must make of the give regard of the notice without or not whether failure * pleaded. notice judgment The Commissioner of the circuit recommends that affirmed. court be foregoing Sutton, C., adopted
PER opinion CURIAM: —The judgment is ac- opinion court. The the circuit court JJ., J., McGullen, Becker and cordingly Hostetter, affirmed. P. concur. Cape Drum, Girardeau, L.
Frank Ed. Kelly, Appellant, Harry Re Coffman, Batchelor, Frank spondents. Paul Brooks (2d) 693. 89 S. W. Appeals. 1936. Opinion filed Louis Court of Jan. rehearing
Motion for 1936. overruled Jan.